You may have heard that the New Orleans Saints have voted unanimously in favour of decertifying the NFL Union to try and prevent a lockout. You’ve probably also heard the term “antitrust laws” thrown around as part of this decertification discussion as it relates to the NFL labor situation.

What is decertification and how can it be used to try and prevent a lockout? How do antitrust laws apply here?

In this column, I connect the dots from decertification to the lockout. My intention is not to provide a detailed review of antitrust law, but to explain the fundamental principles at play.

Antitrust Laws: What Is It & How Does It Apply

So long as the Union is in place, the collective bargaining agreement (CBA) governs the relationship between the Players and the NFL teams. The CBA sets out the rules that both sides need to follow.

Why is this important? Well, there are a bunch of provisions in the CBA that are in violation of U.S. antitrust law.

Think of antitrust as anti-competition. Where competitors get together and implement rules that limit competition, they open themselves up to an antitrust or anti-competition claim. Back in the 1880s, the U.S. Federal Government wanted to ensure healthy competition and didn’t want to see competitors getting together to fix the market. That was the beginning of antitrust laws in the U.S.

The NFL & Antitrust Violations

How does this apply to the NFL? The NFL has 32 individual teams that are all competitors. These competitor teams have gotten together and imposed a number of limits that restrict the marketplace for players.

For example, the CBA provides for a salary cap, places limits on free agency and restricts the number of players a team can employ at 53.

As well, the college draft system grants each team exclusive negotiating rights for the players it selects in the annual NFL draft. These exclusive rights extend for a period of one year. When a team selects a player in the NFL draft, the team is “deemed to have automatically tendered the player a one year NFL Player Contract for the Minimum Active/Inactive List Salary then applicable to the player.”

The teams even share revenues.

Generally, competitors that get together and place restrictions on trade open themselves up to an antitrust claim.

Question: How then do the NFL teams get away with these antitrust violations?

Answer: Since these restraints on competition are placed in the CBA, the NFL is protected. Think of the CBA as a bubble and all that matters is what's in the bubble. This means that so long as the CBA is in place, the league insulates itself from an antitrust claim.

Decertification: What Is It?

That’s where decertification comes in.

When the Union decertifies it disbands, or put more bluntly, it kills itself. So if the Union decertifies, it will cease to exist.

If the Union decertifies, then the CBA no longer applies. This makes sense because the CBA is the agreement between the Union and the NFL teams, and if the Union isn’t around anymore, then the CBA can’t apply.

When the CBA no longer applies, then the antitrust violations in the CBA suddenly come into play and the players could sue the NFL for antitrust violations (this assumes that NFL unilaterally imposes the same conditions in the labour market for players as exists under the CBA, which it would otherwise since without it we would have a free-for-all).

Well, the NFL would have a tough time with this type of lawsuit and they could end up paying a lot of money if they lost in court. An antitrust lawsuit could result in a catastrophic award of monetary damages against the NFL.

The Union has done this before. After a disastrous 1987 strike, complete with player defections, the Union decertified and players filed an antitrust lawsuit. Players became plaintiffs, with names such as Freeman McNeil and Reggie White leading the way. The McNeil case gave the NFL a glimpse of the impact of antitrust liability. The jury returned a verdict with total damages of $1,629,000 to be split among just four players. The NFL promptly settled the matter when a class action lawsuit was subsequently launched.

So this answers the next question – what’s the benefit of decertifying? If the Union decided to decertify, the hope would be that the threat of antitrust lawsuits would pressure the NFL to negotiate a favourable CBA and not lock the players out.

The NFL is not without options, and it could challenge the decertification. The NFL could argue that a collective bargaining relationship continues to exist between the players and the NFL, and that the Union’s act of decertifying is merely an act of posturing. So while the Union has decertified, the NFL would argue, it is still operating behind the scenes in some capacity.

The NFL teams could also argue they are not in violation of antitrust laws. Although there are restrictions in place, they are necessary to operate the league. They may have more success justifying that position with the salary cap, since it promotes competitive balance. However, they would have more trouble justifying things like the free agent and college entry player restrictions.

As a side note, antitrust laws don’t apply to a single entity – only to a group of competitors. The NFL could argue that they are a single entity and therefore not in violation of antitrust laws. However, this won’t fly. They’ve tried it numerous times and have lost – most recently this year in the U.S. Supreme Court case American Needle (copy of the decision embedded in link).

Decertification is not something done lightly so the Union will move cautiously.

Goodell and the owners have made their displeasure with the current arrangement well known. So expect the NFL to really dig their heels in, and if need be, fight decertification.